three instances in which a signature alone can mean a nation is legally bound to that treaty:

(a) the treaty provides that signature shall have that effect;

(b) it is otherwise established that the negotiating States were agreed that signature should have that effect; or

(c) the intention of the State to give that effect to the signature appears from the full powers of its representative or was expressed during the negotiation.

None of these occurrences would appear applicable to the proposed Moon Treaty or to the U.S. negotiating role. Article 19 of the proposed Moon Treaty provides that the agreement is open for signature; that it is subject to ratification by signatory nations; that it will enter into force 30 days after five nations have deposited their instruments of ratification with the Secretary-General. of the United Nations; and nonsignatories can thereafter accede to it at any time. A nation that does not sign the agreement would have no strict legal obligations thereunder. According to article 18 of the Vienna Convention on Treaties, a signatory would be obligated to refrain from acts which would defeat the object and purpose of the agreement until it makes its intention clear not to become a party to the agreement. 35 It can also be asserted that signature alone can represent some degree of political approval and at least a moral obligation to seek ratification.36 By virtue of article 18 of the Vienna Convention, a signatory that has deposited its instrument of ratification would have the same obligation to refrain from acts which would defeat the object and purpose of the agreement prior to the actual date of its entry into force.37 Upon entry into force, nations that have so ratified it would be legally bound internationally by its provisions to perform them in good faith. "If the United States has not deposited its ratification, the agreement is not in force for the United States. If the United States has deposited its ratification but the required number of states have not, the agreement is not in force internationally and cannot be in force for the United States."38 RESERVATIONS, UNDERSTANDINGS, AND DECLARATIONS

It has been suggested that if the Moon Treaty is signed by the United States, the Senate could give its advice and consent to ratification subject to certain understandings and declarations which can clarify ambiguities in the text as well as reemphasize the interpretation of the United States as to the meaning of certain phrases.39

The Senate can withhold consent to a treaty submitted to it, or it can consent only on condition that certain reservations, understandings, or declarations be made part thereof.

Reservations. A reservation modifies or limits the substantive effect of one or more of the treaty provisions. A reservation is a condition that adds something of substance to the treaty or takes something of substance from it, and gives notice that the reserving state will not give effect to the treaty except on such conditions. The most frequent kind of reservation is a brief statement that the United States does not adhere to a particular article, or to a clause within an article. The effect is to remove the obligation contained in the provision from the treaty. . .

Understandings. The term "understanding" is used to designate a statement which is not intended to modify or limit any of the treaty provisions. It may clarify, or interpret one or more provisions of the treaty, or incorporate a statement of policy or procedure. ... Technically, a true understanding need not be accepted by the other party for the treaty to enter into force. As with a reservation, if an understanding adopted by the Senate is agreed to by the President and the other party to a bilateral treaty, it will have full force and effect and will be controlling in the treaty relationship.

Declarations. The terms "declaration" or "statement" are also used to give notice of certain matters of policy or principle, without in any way derogating from or varying the substantive rights or obligations stipulated in the treaty. These terms are frequently used interchangeably with the term "understanding." Other terms occasionally used may be "clarification," "interpretation," or "protocol."

The legal significance of a Senate statement, no matter what its designation, depends entirely upon its substance. A statement that modifies, limits, or changes the treaty text or meaning is a true reservation; a statement that clarifies or explains, or deals with an incidental matter, does not change the treaty and is therefore not a reservation.

On occasion it may be difficult to distinguish clearly between an understanding and a reservation. The one may gradually shade into the other, and it becomes a

matter for the parties themselves to decide. The designation "reservation" or "understanding" used by the Senate will of course provide some evidence as to the Senate intent. But the label is not conclusive. The other party or parties to a treaty may view as a reservation what we have called an understanding, or vice-versa." If any reservations, understandings, and declarations are adopted by the Senate, the President can reject them and return the treaty to the Senate for further consideration, or he can decline to execute the instrument of ratification in which event there will be no treaty with regard to the United States. If the President accepts them, he will sign the instrument of ratification which is prepared by the Department of State and which contains the full text of the reservations or understandings adopted by the Senate.41

The international legal effect of these additional particulars raises complex matters and much will depend on the reaction of the other contracting parties. Generally, adherence to multilateral treaties with reservations has been permitted, although some reservations may be excluded by the treaty itself, and principle may exclude a reservation that frustrates or is inconsistent with the purpose of the treaty. If the reservation is accepted by all parties, such results in a special arrangement between them and the reserving state. Since a permissible reservation is in legal effect a counter-offer, if a single party objects the reserving state can be prevented from becoming a party. For understandings and declarations, they will be treated as accepted unless the other parties clearly reject them. Difficulty arises if some accept them and others do not. In the absence of some dispute settlement procedure, some agreement might result at least between the declaring state and those of like sentiment.42

26 Rosenfield, "Article XI of the Draft Moon Agreement," in Twenty-second Colloquium on the Law of Outer Space (1979), at 209, 210-211.

27 Dula, "Free Enterprise and the Proposed Moon Treaty," 2 Hous. J. Int'l. L. 3, 20 (1979).

28 Letter dated Feb. 26, 1980, from J. Brian Atwood, Assistant Secretary for Congressional Relations, Department of State to Senator Adlai E. Stevenson.

29 Smith, "The Moon Treaty and Private Enterprise," Astronautics and Aeronautics, January 1980, at 62, 64.

30 U.S. Mission to the United Nations, Press Release USUN-107 (79), Nov. 1, 1979, at 7.

31

Cepelka and Gilmour, "The Application of General International Law in Outer Space," 30 J. Air Law and Comm. 30, 39 (1970).

32 Section of International Law Report, at 7.

33 Bolintineanu, "Expression of Consent to be Bound by a Treaty in the Light of the 1969 Vienna Convention," 68 Am. J. Int'l L. 672 (1974).

34 The United States is not a party to this treaty which entered into force as between ratifying and acceding states on Jan. 27, 1980. It has been submitted to the Senate. See, Exec. L., 92d Cong., 1st Sess. For information on what parts of the Convention United States objection has emerged, see 1974 Digest of United States Practice in International Law, at 195-199. For other sources of the text, see UN Doc. A/Conf. 39/27; 63 Am. J. Int'l L. 875; 8 ILM 679.

35 See, also, Tentative Draft No. 1 of the Restatement of the Foreign Relations Law of the United States (Revised), Apr. 1, 1980, § 314.

36 Id., Comment to § 313.

37 Id., § 314.

38 Id., Comment to § 316.

39 In fact, some understandings and declarations have been proposed for consideration by the Senate. For example, the following appear in a resolution adopted by the Council of the Section of International Law of the American Bar Association at the 1980 spring meeting:

"(a) It is the understanding of the United States that no provision in this Agreement constrains the existing right of governmental or authorized nongovernmental entities to explore and use the resources of the moon or other celestial body, including the right to develop and exploit these resources for commercial or other purposes. In addition, it is the understanding of the United States that nothing in this Agreement in any way diminishes or alters the right of the United States to determine how it shares the benefits derived from exploitation by or under the authority of the United States of natural resources of the moon or other celestial bodies;

"(b) Natural resources extracted, removed or actually utilized by or under the authority of a State Party to this Agreement are subject to the exclusive control of,

and may be considered as the property of, the State Party or other entity responsible for their extraction, removal or utilization;

"(c) Recognition by the United States that the moon and its natural resources are the common heritage of mankind constitutes recognition (i) that all states have equal rights to explore and use the moon and its natural resources, and (ii) that no State or other entity has an exclusive right of ownership, property or appropriation over the moon, over any area of the surface or subsurface of the moon, or over its natural resources in place. In this context, the United States notes that, in accordance with Article[s] 12 and 15 of this Agreement, States Parties retain exclusive jurisdiction and control over their facilities, stations and installations on the moon, and that other States Parties are obligated to avoid interference with normal operations of such facilities."

40 U.S. Department of State, 1977 Digest of United States Practice in International Law, at 375-377.

41 Id., at 377.

42 Tentative Draft No. 1, "Restatement of the Foreign Relations Law of United States (Revised)." Apr. 1, 1980, Introductory Note: Reservations.

Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 96th Cong., 2d sess. (Sen. Comm. Print 1980), Pt. 4, pp. 449, 454-458. See, also, the 1979 Digest, pp. 1172-1184.

Space Cooperation

United States-Japan: Space Launch Assistance

The United States and Japan concluded an Agreement Relating to Space Launch Assistance, with exchange of letters, by an exchange of notes at Washington, December 3, 1980; TIAS 9940; 32 UST 4197; entered into force, December 3, 1980.

The Agreement extended assurances contained in earlier agreements (see, post) to Japanese development of ETV-II and H-I launch vehicles capable of putting up 550 kilograms of payload into geostationary orbit. The exchange of letters covered the use of the United States Space Transportation System by the Government of Japan for payloads requiring capacity in excess of that provided by the ETV-II or H-I launch vehicles.

The United States agreed to permit United States industry to provide the equipment and related technology required, including cryogenic hardware for development of a cryogenic upper stage, in view of undertakings by the Government of Japan that:

(1) the equipment and/or technology transferred to Japan would be used solely for peaceful purposes and exclusively for the launching of satellites by the Japanese National Space Development Agency;

(2) the communication satellites launched with the ETV-II and H-I launch vehicles would be established or used only in a manner compatible with the obligations, objectives and purpose of the INTELSAT Agreement, done at Washington, August 20, 1971 (TIAS 7532; 23 UST 3813; entered into force, Feb. 12, 1973); and

(3) the equipment and/or technology transferred to Japan would not be transferred to any third countries and would not be used to launch projects for any third countries, except by prior agreement with the United States.

The United States and Japan concluded an Agreement Concerning Cooperation in Space Activities for Peaceful Purposes, by exchange of notes at Tokyo, July 31, 1969; TIAS 6735; 20 UST 2720; entered into force, July 31, 1969.

A Department of State aide-mémoire to the Embassy of Japan, dated Sept. 8, 1976, and the Embassy's note No. P 107, dated Dec. 9, 1976, concerned similar assurances in regard to an improved Japanese N-1 launch vehicle. Dept. of State File Nos. P76 0143-1196 and P81 0135-1162.

Chapter 9

STATE RESPONSIBILITY FOR INJURIES TO ALIENS: DIPLOMATIC PROTECTION AND INTERNATIONAL CLAIMS

Conditions and Procedural Aspects of Assertion of Claim of State Responsibility

Denial of Claims

Expiration of Time Limits for Filing

A constituent asked Congresswoman Margaret M. Heckler for assistance in obtaining compensation for property allegedly taken from a relative by the Government of Poland. J. Brian Atwood, Assistant Secretary of State for Congressional Relations, replied to Congresswoman Heckler's inquiry on behalf of her constituent in a letter dated January 14, 1980, that read in part as follows:

*

All claims of nationals of the United States for the loss or destruction of, or physical damage to, property located in Poland and certain other countries, which loss, destruction or physical damage occurred between September 1, 1939, and May 8, 1945, have been adjudicated by the Foreign Claims Settlement Commission of the United States under the provisions of Public Law 87-846, approved October 22, 1962. Claims of persons who were not nationals of the United States when the loss or destruction occurred were denied. Awards rendered by the Commission were certified to the Secretary of the Treasury for payment out of the War Claims Fund. It is now too late to file a claim under the law as the time for doing so expired on January 15, 1965. The Commission completed its determinations under the law on May 17, 1967.

All claims of nationals of the United States for the taking of property by the Government of Poland prior to July 16, 1960, have been settled by an agreement of July 16, 1960, between the Governments of the United States and Poland. Under the agreement, the Government of Poland agreed to pay $40 million in 20 annual installments to the Government of the United States in settlement of all outstanding claims of nationals of the United States. The claims were adjudicated by the Foreign Claims Settlement Commission of the United States . . . under the provisions of Title I of the International Claims Settlement Act of 1949, and certified to the Department of the Treasury for payment. It is now too late to file a claim as the Commission completed its func